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Thailand’s Section 44 and Article 48 of the Weimar Constitution Compared

This column is not an attempt to draw parallels between General Prayut Chan-ocha and Adolf Hitler nor to compare Thailand at present with Germany post-1933; it is an attempt to understand the similarities in how the present Thai and the historical German dictatorial models began. That the fundamental nature of dictatorship involved in both cases is similar and affects similar areas of human rights in itself should provide a warning to the Thai government to accelerate genuine efforts to create political reconciliation leading to a stable democracy based on reducing inequity in social classes and unequal opportunity as regards ethnic groups.

The creation of a Thai ‘political theology’ (following Carl Schmitt) as based on a dictator deciding the ‘state of exception’ is evident in the Thai context in the fact that martial law, declared on May 20, 2014 was replaced by Order number 3/2558 (3/2015) on April 1, 2015, which installed “measures to deal with actions intended to undermine or destroy peace and national security, violate notifications or orders of the NCPO, or to commit offenses under the laws on firearms, ammunition, explosives, fireworks and artificial weapons which threaten the peace and security of the nation”. This established that Section 44 of the Interim Constitution of Thailand is the means by which Thailand is now governed, i.e., it is the equivalent of the Weimar constitution’s Article 48, under which Hitler issued thousands of decrees. Article 48 was invoked by the Decree of the Reich President for the Protection of People and State, passed on February 27, 1933, one day after the Reichstag Fire, and is the equivalent of the Thai Order number 3/2558 (3/2015). Section 44 and Article 48 can be compared:

 

Section 44

For the sake of the reforms in any field, the promotion of love and harmony amongst the people in the nation, or the prevention, abatement or suppression of any act detrimental to national order or security, royal throne, national economy or public administration, whether the act occurs inside or outside the Kingdom, the Leader of the National Council for Peace and Order, with the approval of the National Council for Peace and Order, may issue any order or direct any action to be done or not to be done, irrespective of whether the order or action would produce legislative, executive or judicial effect. Those orders or actions, as well as their observance, shall be deemed lawful, constitutional and final. After the exercise of such power, the President of the National Legislative Assembly and the Prime Minister shall be informed thereof without delay. (Interim Constitution of the Kingdom of Thailand, 2014)

 

Article 48

If a state (8) does not fulfil the obligations laid upon it by the Reich constitution or the Reich laws, the Reich President may use armed force to cause it to oblige.

In case public safety is seriously threatened or disturbed, the Reich President may take the measures necessary to re-establish law and order, if necessary using armed force. In the pursuit of this aim he may suspend the civil rights described in articles 114, 115, 117, 118, 123, 124 and 154, partially or entirely.

The Reich President has to inform Reichstag immediately about all measures undertaken which are based on paragraphs 1 and 2 of this article. The measures have to be suspended immediately if Reichstag demands so.
If danger is imminent, the state government may, for their specific territory, implement steps as described in paragraph 2. These steps have to be suspended if so demanded by the Reich President or the Reichstag. Further details are provided by Reich law. (Weimar Constitution, 1919)

 

As can be seen, both require the most senior civilian official in the land to be informed, namely the Reich President or President of the National Legislative Assembly. In Hitler’s case, the office of the Reich President was effectively suspended, with Hitler holding the titles of Fuhrer and Reich Chancellor. Moreover, while three Reichstag elections were held during Hitler’s rule, the witch-hunt against the communists following the Reichstag Fire meant that the Nazi party was a majority, and it subsequently became a one-party state. Thus, the Reichstag was essentially hand-picked in elections subsequent to the March 5, 1933 elections (where the Nazis and their allies won 52%), with the Thai National Legislative Assembly of 2014 being completely hand-picked by the NCPO.

In the case of Section 44, General Prayut is both the Leader of the NCPO and the Prime Minister (appointed August 21 2014 by himself after running as the sole candidate). Moreover, the President of the National Legislative Assembly, Supreme Court Judge Pornpetch Wichitcholchai, was hand-picked by the NCPO on August 8, 2014. Moreover, Article 48 specifies the rights suspended, namely habeas corpus (Article 114), inviolability of residence (Article 115), privacy of correspondence (Article 117), freedom of expression/censorship (Article 118), freedom of assembly (Article 123), freedom of association (Article 124) and the right to property (Article 153). On the other hand, Section 44 is a blanket pronouncement, in practice covering all seven of the articles in Article 48, habeas corpus in the recent case of Mr. Pichai Naripthaphan, Mr. Karoon Hosakul, and Mr. Pravit Rojanaphruk; attempts to illegally search without a warrant such as in the case of Sirawit Serithiwat; the military ordering the surrender of email passwords, as in the case of Pongsak S.; the almost complete collapse of freedom of expression, e.g., the  intimidation of Bundit Aneeya after calling for all Thais of all classes to be equal, not to mention Thailand’s lese majeste laws, the harshest and most loosely defined in the world, as in the case of the actors in the ‘The Wolf Bride’ play; on free assembly, multiple prohibitions and the passing of the highly restrictive Public Assembly Bill; on freedom of association, military intimidation of private meetings of former lèse-majesté prisoners as in the case of Nat Sattayapornpisut; and finally as regards the right to property, the military’s illegally seizing of material such as a stereo from villagers organizing to protect the local environment.

The main danger of ‘indeterminate’ concepts such as “any act detrimental to national order or security, royal throne, national economy or public administration” in the hands of dictators seeking to unite a country is that they lend themselves to the deliberate creation of an ‘Other’ through the creation of a ‘racial superiority’, which in the case of Germany ultimately led to the concentration camp. That a majority Theravadan Buddhist state can follow such logic of racial supremacy and commit war crimes on a massive scale in the modern era – even if arguably ‘provoked’ –  is not in question – such a war was waged in Sri Lanka from 1983 to 2009. Furthermore, in Thailand, the South Thailand Insurgency, which erupted in 1948 during the second ultra-nationalist Field-Marshall Plaek Phibunsongkhram government and has been in an especially violent phase since 2004 is another form of total war where any accommodation such as permitting Thai Malay to become an official language has been ruled out by a senior general despite a death toll of approximately 6,000 in the last decade. What is a concluding question therefore is whether Theravadan Buddhism lends itself to a strong social hierarchy consistent with totalitarian tendencies and a subsequent unity of purpose which is comfortable under dictatorships where ‘Others’, particularly religious and ethnic minorities not ideologically or geographically at the center of the ‘mandala’ of government, are demonized – and if so, how to counter this unfortunate tendency by promoting human rights.